Hopkins v. Merit Systems Protection Bd., No. 83-1245

• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
• Writing for the Court: Before MILLER and SMITH, Circuit Judges, and RE; EDWARD S. SMITH; For all of the above reasons
• Citation: 725 F.2d 1368
• Decision Date: 23 January 1984
• Docket Number: No. 83-1245
• Parties: Tyler HOPKINS, Jr., Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent. Appeal

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725 F.2d 1368 Tyler HOPKINS, Jr., Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD, Respondent. Appeal No. 83-1245. United States Court of Appeals,
Federal Circuit. Jan. 23, 1984.

Page 1369

Daniel Blum, Bethesda, Md., argued for petitioner. With him on brief was Louis Fireison, Bethesda, Md.

Robert A. Reutershan, Washington, D.C., argued for respondent, J. Paul McGrath, Asst. Atty. Gen., David M. Cohen, Director, Thomas W. Petersen, Asst. Director, Washington, D.C., and Beacham O. Brooker, Jr., Bethesda, Md., were on brief, for respondent; James Bennett, McLean, Va., of counsel.

Mary M. Jennings, Washington, D.C., argued for Merit Systems Protection Bd. on respondent's motion to reform caption.

Before MILLER and SMITH, Circuit Judges, and RE, Judge. ^*

EDWARD S. SMITH, Circuit Judge.

Petitioner Hopkins appeals from a decision by the Merit Systems Protection Board (MSPB) dismissing his request for attorney fees on the grounds of untimeliness. Additionally, the Department of Justice (Justice) and the MSPB have raised the matter of who is the proper respondent in this and

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similar cases. Finally, Justice has moved to dismiss on the grounds that Hopkins' petition constitutes a "mixed" MSPB/discrimination case properly lying in the district court. We have denied Justice's motion to dismiss, ¹ and today we affirm the MSPB on its dismissal for untimeliness and hold that the MSPB is the proper respondent.

Background

Hopkins successfully appealed from, and obtained reversal of, his termination from employment as a United States deputy marshal. In appealing his removal to the MSPB, Hopkins claimed that Justice had discriminated against him on two grounds: race (black) and physical handicap (eyesight problem). Initially, the MSPB field office dismissed without prejudice Hopkins' petition, noting that he had filed a complaint with the Equal Employment Opportunity Office. When no action resulted from this complaint, Hopkins resubmitted his MSPB appeal. The full MSPB finally rejected both of Hopkins' discrimination claims but ordered Hopkins reinstated on the grounds that his removal did not promote the efficiency of the service.

The final MSPB opinion and order reinstating Hopkins was dated March 24, 1982, and was received at the office of Hopkins' attorney on March 31, 1982, with a postmark indicating it was mailed on March 26. Hopkins' attorney then had hand-delivered to the MSPB a request which the MSPB received at 5:25 p.m. on April 12, 1982, for attorney fees "in the interest of justice," according to the provisions of 5 U.S.C. Sec. 7701(g)(1) (1982). ² More than one year later the MSPB dismissed Hopkins' attorney fee request as untimely filed. Hopkins seeks judicial review of that dismissal here.

Opinion

I.

Initially, we address our denial of Justice's motion to dismiss, filed 3 working days before oral argument in this case. Justice contended that this is a "mixed" case involving discrimination claims, such that jurisdiction properly lies not in this court but in the United States district court, in accordance with our decision in Williams v. Department of the Army, 715 F.2d 1485 (Fed.Cir.1983). Justice's argument misses, however, the nature of Hopkins' petition here. He is requesting review of the MSPB's dismissal for untimeliness of an attorney fee request, not review of the MSPB decision on the merits of Justice's attempted removal action. That MSPB decision on the merits was explicitly not based on either race or physical handicap discrimination grounds. More importantly, Hopkins himself has opposed the motion to dismiss because the case is no longer "mixed"; all parties have abandoned any claims relating to discrimination. Hopkins' position is both rational and practical: he has attained before the MSPB the objective he sought--reversal of Justice's removal and his reinstatement. It would be an academic exercise wasteful of both Hopkins' and judicial resources for him to pursue review of his earlier discrimination claims. We have therefore denied Justice's motion to dismiss. Meehan v. United States Postal Service, 718 F.2d 1069 (Fed.Cir.1983).

II.

Regarding the untimeliness issue, the pertinent MSPB regulation states explicitly that attorney fee requests "shall be made by motion within 10 days of final date of a decision [by the MSPB]." 5 C.F.R. Sec. 1201.37(a)(2) (1982). Counting 10 calendar days from the final decision of March 24 here at issue, one reaches April 3, 1982, a Saturday, to be counted as April 5, the business day Monday. Id. Secs. 1201.4(i), 1201.23. Hopkins did not file his request until after hours on April 12, clearly beyond the 10-day deadline. Id. Sec. 1201.22(c). Hopkins' argument that his filing was in fact timely because the 10-day period should be counted from date of receipt of

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the MSPB decision is contrary to these regulations, and we reject it.

Alternatively, Hopkins contends that the MSPB presiding official should have exercised his discretion to waive the time limit "for...